Dismissed

Santhosh Kumar.O.G., v. Smrithi S.Kurup

Kerala HC12 Oct 2023Mat.Appeal/389/2022

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed the matrimonial appeal filed by the husband against the Family Court's judgment granting the wife a decree for restitution of conjugal rights and directing maintenance payments. The court upheld the finding of the child's legitimacy. The Appeal was held sans merit.

What did the court decide?

The appeal was dismissed. The judgment and decree of the Family Court were affirmed.

Santhosh Kumar.O.G., Vs Smrithi S.Kurup — Maintenance and Alimony | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE AMIT RAWAL

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THE HONOURABLE MRS. JUSTICE C.S. SUDHA

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MONDAY, THE 16TH DAY OF OCTOBER 2023 / 24TH ASWINA, 1945
MAT.APPEAL NO. 389 OF 2022

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AGAINST THE JUDGMENT IN OP(HMA) 207/2014 DATED 20.02.2016 OF FAMILY COURT, ALAPPUZHA

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APPELLANTS/RESPONDENTS:

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1SANTHOSH KUMAR.O.G.,
AGED 44 YEARS
S/O.LATE GOVINDANKUTTY NAIR, KANJIRATHUPARAMBU,
KOTTARAMKULANGARA WARD, AVALOOKUNNU P.O., ALAPPUZHA.

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2VASAMMA,
AGED 73 YEARS
W/O.LATE GOVINDANKUTTY NAIR, KANJIRATHUPURAMBU,
KOTTARAMKULANGARA WARD, AVALOOKUNNU P.O., ALAPPUZHA.

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BY ADVS.
TISSY ROSE K CHERIYAN
RANJANA V.

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RESPONDENTS/PETITIONERS:

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1SMRITHI S.KURUP,
AGED 34 YEARS
W/O.SANTHOSH KUMAR, THAMARAPPALLYIL HOUSE,
MARARIKKULAM NORTH, S.L.PURAM P.O., CHERTHALA,
ALAPPUZHA.

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2SOURAV.S.,
AGED 9 YEARS
MINOR REPRESENTED BY MOTHER, SMRITHI S.KURUP,
THAMARAPPALLYIL HOUSE, MARARIKKULAM NORTH,
S.L.PURAM P.O., CHERTHALA, ALAPPUZHA.

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BY ADV
S.SHIV SHANKAR

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THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
16.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MAT.A.NO.389 OF 2022

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JUDGMENT

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AMIT RAWAL, J.

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The present appeal is directed against the judgment dated 20.02.2016 whereby the petition filed by the wife for restitution of conjugal rights has been allowed and appellant husband was directed to pay maintenance at the rate of Rs.2,000/- (Rupees Two thousand only) per month to the wife from the date of petition, i.e., 11.04.2014 till resumption of the cohabitation and Rs.1,500/- (Rupees One thousand five hundred only) to the child. Wife has also been authorised to receive maintenance on behalf of minor child.

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The facts leading to the filing of the aforementioned petition, in brief are that the marriage between the parties was solemnized on 05.07.2012 as per the Hindu Religious rites and ceremonies. After the marriage couple lived together till 13.08.2012 and the respondent wife had to leave the matrimonial house as

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MAT.A.NO.389 OF 2022

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the husband insisted for abortion when she showed the symptoms of pregnancy. Averments with regard to the enstrustment of the gold ornaments and other articles were also made. During the pendency of the petition, I.A. No.99 of 2016 was submitted for withdrawing the relief with regard to the return gold and patrimony.

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Husband on appearance contested the petition by alleging that he has withdrawn from the company of the wife with reasonable cause for, wife after the marriage disclosed that she was in love with another man namely Bijukuttan. It is for that reason after few days of marriage the parties started living separately. Despite that he brought her back from the matrimonial home and started living together. But on 12.08.2012 she wanted to quit the matrimonial home. Though mediation talks were made, she continued to stay in her parental home and gave birth to the child. Since the parties were at variance, the Family Court framed the following points:

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MAT.A.NO.389 OF 2022

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-4-

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“1.Whether I.A.99/2016 allowable?

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2.Whether the petitioner is bad for mis-joinder of party?

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Whether the petitioner is entitled to get a decree for restitution of conjugal rights, as prayed?

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Whether the prayer for maintenance and hospital expense allowable? If so what is the quantum thereof?

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5.Reliefs and costs?”

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Respondent wife in support of the case examined Pws. 1 to 3 and brought on record Exts.A1 to A4. On the other side appellant examined himself as CPW1 and another witness as CPW2 but no documents were marked. Trial court on the basis of the aforementioned evidence allowed the petition.

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Learned counsel appearing on behalf of the appellant husband submitted that judgment and decree is not sustainable in the eyes of law for, the respondent wife lived with him for a short period but gave birth to the child after eight(8) months and twenty(20) days of

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MAT.A.NO.389 OF 2022

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marriage. In other words, she became pregnant before the marriage. Trial Court has erroneously applied the provisions of Section 112 of the Indian Evidence Act, 1872 and found the child to be legitimate.

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Lower Court ought not to have conclusively proved that the husband was having access to wife at the time of her pregnancy to prove the legitimacy of the child. In fact respondent wife left the matrimonial home taking all her belongings including gold ornaments and showed no interest in continuing with the marriage. The maintenance awarded is also on a higher side.

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We have heard counsel for the appellants and appraised the paper book and there is no force on merit.

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Section 112 of the Indian Evidence Act, 1872 is extracted herein below:

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“112. Birth during marriage, conclusive proof of legitimacy.—The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution,

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MAT.A.NO.389 OF 2022

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the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”

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The aforementioned section reveals that if the husband had an access to the wife, the allegation with regard to legitimacy of the child can rightly be rejected, for, the marriage was performed on 05.07.2012 and they lived together upto 13.08.2012. When the birth of the child was after eight(8) months and twenty(20) days, it cannot be said that the wife was pregnant before the marriage. Case set up by the respondent-wife was that the husband had without reasonable cause withdrawn from her society. It is in that background petition was filed. Withdrawal from the Society on the allegation as urged by the counsel do not merit acceptance for, it was only an apprehension and an attempt to indulge into character assassination. Such fear or apprehension should not be sparked with a little wear and tear in their

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MAT.A.NO.389 OF 2022

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matrimonial life. We do not find any strong reason to disagree with the findings of the court below for accepting the appeal.

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Appeal sans merit. Accordingly dismissed.

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Sd/-

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AMIT RAWAL JUDGE

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Sd/-

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C.S. SUDHA
JUDGE

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Santhosh Kumar.O.G., v. Smrithi S.Kurup

Case brief

What is this about?

What did the court decide?

Santhosh Kumar.O.G., v. Smrithi S.Kurup

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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